Human Rights and Vicarious Liability for Harassment
While in many cases, an employer can be vicariously liable for the actions of its employees, a number of nuances come into play when it comes to human rights matters. Incognito v. Skyservice Business Aviation (2022 ONSC 1795) provides a helpful overview of these considerations, at least relating to Ontario law.
By background, Incognito brought a number of claims against both her former employer (“SBA”) as well as a Vice President of SBA. In respect of SBA, Incognito alleged she was subjected to “sexual intimidation” for which SBA was vicariously liable under section 46.1 of the Ontario Human Rights Code (“OHRC”). This section holds that an individual can bring a civil claim for a breach of the OHRC if coupled with another civil wrong (as opposed to being able to pursue relief only with the Ontario Human Rights Tribunal).
SBA, however, brought a motion to strike this vicarious liability claim on the basis that, as per the OHRC and applicable case law, sexual harassment is not an independent tort and there was thus no cause of action. The motion wound up before Justice Vermette, who ultimately agreed with SBA. Justice Vermette pointed to 46.3 of the OHRC, which expressly states that an employer cannot be liable for harassment under section 5(2) (“harassment in employment”) or section 7 (“sexual harassment”). That said, Justice Vermette notably made it clear that Incognito could still amend her claims and use section 46.1 in relation to OHRC breaches other than harassment under sections 5(2) and 7. Namely, if a company’s management is aware of harassing conduct and fails to address it, they may have contributed to a poisoned work environment, and such failure may breach the general prohibition against discrimination in employment under OHRC section 5(1) (which would not be impacted by section 46.3). In addition, there is case law holding that where an alleged harasser is a “directing mind” of a corporation (ie. they perform some function of management), the corporation can be held liable for harassment irrespective of section 46.3.
In sum, while an employer cannot be vicariously liable for harassment under sections 5(2) or Section 7, harassment can still potentially contribute to employer liability in other ways. It should be noted that this matter may be treated differently in other Canadian jurisdictions, namely other provinces or federally.
For more information or employment law advice, contact a lawyer at Turnpenney Milne LLP.